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Chapter 8

Civil Lawsuits for Victims of Crime

Abstract: There
are two major and distinct components of America's justice system,
criminal and civil courts. Criminal courts deal with that aspect
of the justice system that determines guilt or innocence in regard
to crimes and metes out criminal sanctions. Increasingly, victims
are looking to the civil justice system to pursue their own private
actions against perpetrators for the recovery of monetary damages.

Learning Objectives:Upon completion of this chapter, the student will understand
the following concepts:

1. Be able to describe distinctions between criminal and civil
justice systems.

2. Understand the mechanics of the civil justice system.

3. Recognize the types of lawsuits typically brought by victims.

4. Understand the benefits and limitations of victim civil litigation.

Introduction

A Right Without a Remedy is No Right at All.

Crime victims often suffer great physical and psychological injuries
at the hands of their perpetrators. Despite the overall reduction
in crime rates during the last decades, the severity of injuries
to crime's victims appears to be increasing. Increasingly, victims
of crime look to the civil justice system for vindication of their
rights and recovery of financial reparations from offenders. The
civil justice system may potentially provide victims with the
means to find some recovery for, at least in part, the wrongs
committed against them.

Civil Versus Criminal Justice

In some ways, the civil justice system is complimentary to the
criminal justice system. However, civil justice has numerous distinctions,
many of which may be quite beneficial to victims of crime. The
discussion below will provide an overview of the civil justice
system that is basic to a victim advocate's understanding of this
process.

Civil litigation has become increasingly important for victims
for various reasons. First, victims often encounter great financial
distress due to their victimization. Medical and therapy bills
mount up. Often jobs or income -- as well as property and other
assets -- are lost. The civil justice system provides a mechanism
for victims to seek recovery for losses resulting from their victimization.

Civil Litigation Can Empower Victims

The recovery of financial benefits, although extremely important,
is not the only reason victims look to civil litigation. Civil
litigation can empower victims. Victims whose lives are
seemingly spinning out of control as a result of a criminal victimization
can use the civil court and their greater control of this process
to help put their lives back in balance. Also, going to civil
court often allows the victim to publicize the acts of the perpetrator.
This is very important to many victims who have previously kept
their victimizations secret. Further, the recovery of financial
benefits reinforces the notion that the victim did suffer significant
injuries that it was the perpetrator who was responsible for injuring
the victim and, therefore, made to pay for them.

Civil Litigation as a Deterrent to Crime

Civil litigation often provides a crime prevention method. When
perpetrators, or other negligent parties involved in creating
the conditions of victimization, are made to pay for their violent
acts or negligence, these acts are often not repeated. For example,
when hotels are ordered to pay money damages for their lack of
adequate security that causes rapes or assaults to occur, they
often respond by improving security to avoid future lawsuits.
This is true of many other institutional or third party defendants
who have had to pay damages in negligence suits.

Civil Litigation Basics

As stated above, the civil justice system is in many ways similar
to the criminal justice system that most victim advocates are
more familiar with.

In a civil suit, the perpetrator is still referred to as the
"defendant", but the victim is now called the "plaintiff".

Essentially, a legal "action" is commenced by the
plaintiff (victim) against the defendant (perpetrator or negligent
third party) by "serving" lawsuit papers and filing
them in court.

Subsequently, a period of investigation called "discovery"
occurs whereby the details of the matter are investigated by both
sides in an effort to provide background information to bolster
arguments in a way most favorable to their respective position
in court.

At some point in time a trial is possible, although the vast
majority of civil legal actions are settled out of court. Ultimately
a "verdict" is reached. The verdict is typically returned
by a jury that has sat through the trial listening to the facts
as presented in evidence.

If the verdict results in a "judgment" for the victim,
then the victim will attempt to collect the amount now owed to
him or her. If the verdict is in favor of the defendant, the victim
has lost the trial.

The legal doctrine of Collateral Estoppel provides
that, in some cases, the criminal conviction of perpetrators will
be considered proof of those perpetrator's legal liability in
civil actions brought by the perpetrator's victims.

Victimization as a Tort: A Private Action

When a victim brings a lawsuit, it is typically brought under
what is referred to as a "tort" action. As Professor
Prosser tell us in his learned treatises The Law of Torts,
the word tort is derived from the Latin "tortus" or
"twisted". As Prosser states, the metaphor is apparent:
a tort is conduct which is twisted, or crooked, not straight .
. . broadly speaking, a tort is a civil wrong (Keeton, Dobbs,
Keeton, and Owen, 1984).

Essentially, the legal definition of a tort is a private or civil
wrong or injury which typically involves the violation of a duty
one individual owes to another, often based on the relationship
they have to each other. For our purposes here, two distinct kinds
of torts will be addressed. The first is an "intention tort"
where someone intentionally injures another person. The second
kind of tort is a "negligent tort" in which one person
fails to perform some duty to care for another person and that
causes or contributes to the injury of that other person. These
will be discussed in greater detail below.

Proving a Tort Case: Liability

At least two elements must be proven to support a tort claim.
One is that of "liability". You first must prove that
the defendant is liable in the legal sense, that is, that his
or her actions harmed the victim and caused the injury in a legal
sense. This is sometimes called the proximate cause of the injuries.
The facts one uses to demonstrate liability differ depending upon
whether the tort is intentional or negligent. The second aspect
that must be proven is that of "damages". Damages are
a measurement of what harm has occurred, that is, what are the
extent of the injuries suffered by the victim?

First Party and Third Party Litigation

The types of legal actions pursued by victims, and potential sources
of financial recovery, also depend upon whether they are suing
the perpetrator directly or are bringing their action against
another (non-offending) party. This other, so called third-party
defendant, who contributed so significantly to the victimization
through their negligence, should be held accountable for their
contribution to the victimization. This is the difference between
"first party" and "third party" litigation.

In first party litigation, the victim is suing the
defendant who is the perpetrator. In third party litigation,
the victim is suing another party who is not actually the person
who intentionally caused the injuries. First party litigation
might be the victim of a sexual assault suing the rapist.

Examples of third party litigation include cases where the
victim suing a landlord or hotel for failing to provide adequate
security which created conditions that allowed a rape to occur;
or the lawsuit might be against a school for the negligent hiring
and poor supervision of an employee who sexually abused children
at the school. Other third party lawsuits are brought against
government agencies, for example, correction officials or mental
health officials for the negligent release of dangerous individuals,
or against other kinds of employers who negligently employ and
retain persons who victimize other employees or customers.

It is important to note that there is a significant burden
on the plaintiff/victim to demonstrate that the negligent third
party was actually negligent. Frivolous "deep pocket"
searches are discouraged by the law and courts.

Collectibility: Making Judgments Real

One significant aspect of first party versus third party litigation
is the issue of collectability. Collectability is a general term
which refers to the defendant's ability to pay the judgments rendered
against him or her. In first party litigation, where the action
is brought directly against the perpetrator of the crime, often
the victim is limited to collecting their judgment directly from
the assets of the offender. This is because insurance policies
that might be available to pay certain kinds of judgments often
exclude intentionally committed wrongful acts from coverage and,
therefore, payment. (However, as you will see in the insurance
section below, this is not always the case.)

Most often, the likelihood of recovering damages on behalf of
a victim in first party cases is directly related, at least in
large part, to the wealth of the perpetrator. Third party litigation,
on the other hand, involves cases that are brought against other
entities or institutions that may have adequate resources to pay
for victim damages; and, due to the non-intentional nature of
their negligence, insurance coverage may apply. This opens up
two potential avenues for increasing the likelihood of victim
financial recovery:

Third parties involved in victim litigation tend to be institutions
of some financial stability and means (for example, the grossly
negligent hotel chain mentioned above).

Also, these parties are not intentionally committing wrongful
acts. Their acts typically are categorized under the rubric of
negligent acts. Negligence is generally covered under insurance
policies. That means that additional avenues for payment of judgments
to victims may be made by insurance companies covering negligent
actions.

Causes of Action

A number of different types of civil lawsuits can be brought by
victims against perpetrators depending on the facts of the case.
Many of these have direct linkage to criminal charges and others
are distinct from the criminal law. Although a civil tort is not
a crime, as such, they often are closely related and typically
may involve the same event. A brief overview of major types of
cases potentially available to victims is listed here. It is important
to note that each area, like the other topics discussed in this
overview, requires a much more detailed understanding than is
available in this brief treatment. It is always important for
the victim advocate to obtain competent legal counsel for the
victim in the jurisdiction where the matter will be litigated,
and not to second guess or otherwise judge the merits of a lawsuit.

Wrongful Death

In the case of a homicide on the criminal side, often a wrongful
death suit may be brought on the civil side. A wrongful death
suit is a civil action that is brought when one person has killed
another person and there is no excuse or other justification for
this killing. For example, the law allows us to defend ourselves
against the real threat of being killed. Therefore, the defense
of self-defense is often used to term a homicide as a justifiable
homicide.

Assault and Battery

Assault and battery are historically two separate torts
which, in many jurisdictions, have been merged into one civil
action. Traditionally, the civil action of assault is when
the perpetrator of the crime has intentionally put the victim
in fear of being battered. It is important to note that this fear
must be a real fear based on the apparent ability of the perpetrator
to commit the battery. The companion tort, called battery,
is an intentional, offensive, non-consensual touching of the victim
by the perpetrator. This touching is usually in the form of a
severe injury.

Emotional Distress

Claims for emotional distress are often brought by victims
against their perpetrators. It is important to note that the emotional
distress claim is one that is distinct from the underlying claim
of, for example, assault and battery. This is important because
emotional distress claims often have longer statutes of limitations
during which time a lawsuit may be brought. This means that if
a victim had an underlying lawsuit based on being battered, but
that time frame has passed, he or she may still be able to bring
an action for the emotional distress that was the result of that
underlying battery. Emotional distress may be either intentional
or negligent. Intentional infliction of emotional distress occurs
when the perpetrator has intentionally caused psychological harm
to the victim. Often, the actions of the perpetrator must be considered
extreme or outrageous and sometimes are described as "outside
the bounds of common decency in normal society." The negligent
infliction of emotional distress occurs under similar facts but
there was no actual intention to cause the emotional distress,
it was caused out of the negligence of the perpetrator.

Other Causes of Action

There are several other theories of personal injury that are sometimes
available to victims of crime. These include theories of parental
liability where parents may be held civilly responsible for
the injuries caused by their children. Negligent entrustment
is when one person allows another to use some dangerous instrument
when he or she should have known that that other person might
cause an injury, and injury does befall the victim. Finally, Civil
conspiracy or aiding and abetting are torts that are
recognized in some jurisdictions. This is a situation in which
persons other than the individual who actually committed the crime
so substantially contributed to the perpetrator's ability to commit
the crime that they should also be held somehow responsible for
assisting the actual perpetrator.

The Mechanics of a Civil Action

There are numerous activities that occur prior to the commencement
of a legal action, perhaps the most important of which is engaging
the counsel of a competent attorney. This also illustrates the
first significant distinction between the civil justice system
and criminal justice system for victims, in that in the civil
process victims hire their own attorneys to pursue their actions.
In criminal court, the prosecutor is a government employee who
brings an action on behalf of the government entity against the
alleged perpetrator. That is the second important distinction
between civil and criminal procedures.

In civil matters, the case is brought by the victim directly against
the perpetrator and is typically captioned "Victim v.
Perpetrator" as opposed to the typical criminal action
caption of "State v. Perpetrator". This describes
what happens in actuality, in that the victim is much more in
control of the civil legal action as opposed to being a secondary
party, at best, to a criminal prosecution. However, as explained
below, this has both costs and benefits for the victim.

A document called the Complaint is prepared by the
victim's attorney in consultation with the victim. This document
outlines the various aspects of the victimization for which the
victim seeks to bring the defendant into court to address.

This paperwork is served on the defendant and returned
to court, that commences the formal legal action.

There are numerous other Motions, Requests and other
legal paperwork which can be filed by the defendant at this time,
and throughout the pendency of the law suit.

The complaint is typically formally responded to by the filing
of an Answer. In the answer, the defendant puts forward
his or her responses and defenses to the victim's complaint. Typically,
the defendant can admit or deny facts in the complaint, or leave
it to the victim to prove his or her case. Also, the defendant
can make counter allegations against the victim, a tactic more
often used by defendants.

Discovery: Obtaining Litigation Information

Between the initial filing of paperwork and the ultimate settlement
or trial of a civil action, a very important period called Discovery
occurs. This is a time when both victim and defendant exercise
their rights to obtain information from their opposing party.

For the victim, this often means that they must reveal personal
information to the defendant regarding the effect the victimization
has had on them.

Most often, this includes information regarding treatment
and therapy, including the records of mental health service providers.

Perpetrators and defense counsel often abuse Discovery in
an effort to intimidate and harass victims. Courts typically offer
little protection to victims from these attempts to discourage
legitimate litigation.

Although there are methods for maintaining some confidentiality,
for the most part victims must reveal this information. In particular,
mental health evaluations are used to prove the damages that victims
seek to recover compensation for against the perpetrator. These
damages must be proven through mental health reports and evaluations.

Several methods are employed by both sides of a lawsuit to obtain
information from the other side during Discovery:

Interrogatories are written questions that must be
answered by the victim or the defendant within a certain period
of time. These questions will range from very basic information
regarding where the individual lives up to very complex questions
regarding what the result of the injuries have been.

Requests for production might require the provision
of copies of medical reports, therapy notes, photographs, and
other information. It is important to note that victims are often
required to provide information about similar prior injuries that
the defendant will attempt to use to either explain away or minimize
the current injuries suffered by the victim.

Depositions are often the most unsettling aspect to
the discovery period for victims. This is an opportunity for the
defendant's attorney to take the transcribed statement of the
victim under oath. It is essentially equivalent to testimony at
a trial with direct and cross examination by attorneys. However,
it typically occurs in the lawyer's conference room and not in
court. Of course, the victim has similar rights to obtain information
from the defendant and often the deposition of the defendant,
is an equally unsettling experience for the perpetrator.

Standing: Who Can Sue?

Standing is a legal concept that basically refers to the ability
of an individual to address his or her complaints to the court.
In order to have standing, one must generally be able to demonstrate
that an injury has been suffered, are otherwise able to prove
a sufficient personal interest in a cause of action or controversy,
or be a necessary party in that his or her involvement is necessary
to a fair and just determination of the outcome of the case. Those
most central to a case are referred to as the parties to an action.
In order to be a party to an action, one typically must have an
interest that is so central to the case that they are necessary
to the determination of all the relevant issues involved in a
particular action.

In civil litigation there is often a particular order in which
a priority is established among those individuals who have standing
to bring an action. Typically such a priority of order, for example
in a wrongful death suit, might be:

Surviving spouse

Children

Parents of the deceased

Siblings of the victim

Other relatives

Unjust Enrichment: Who Can Recover?

It is important to make brief mention here of one particularly
important legal doctrine called that of unjust enrichment.
Unjust enrichment dictates that someone should not be allowed
to benefit from their own wrongdoing. For example, someone who
commits a murder should not be permitted to receive the proceeds
of the insurance policy if he or she was named as the beneficiary
of the decedent.

Many times unjust enrichment, which is a common law doctrine,
is also provided through statutory schemes sometimes referred
to as slayers statutes. Slayers statutes, similar to their
common law counterpart slayers rules, would prevent someone
from profiting from their crimes by making it impossible for them
to inherit the proceeds of an estate of someone who they have
killed. Courts have occasionally used extremely creative methods
to assure that unjust enrichment does not occur.

Also, many states have rules that provide immunity between married
individuals which prevents them from suing each other, for example,
in cases of assault. However, courts are often viewing so-called
"interspousal immunity," which is a doctrine created
with the purpose of saving and supporting the institution of marriage,
not being allowed to be used as a defense for domestic violence
or similar crimes.

Burden of Proof

One very important aspect of litigation is the notion of how high
a threshold one has to cross to prove a case. This provides a
major distinction between criminal and civil litigation. In criminal
courts, the beyond a reasonable doubt burden of proof is
a very high burden, which is often described as having to prove
your case to a "very high degree of moral certainty."
If a member of the jury has any "reasonable doubt,"
which essentially means doubt that is formulated well enough that
it can be expressed and supported by reason, they should vote
for acquittal of the defendant.

However, the burden of proof is much lower in a civil trial. The
civil justice system uses the mere preponderance the evidence
burden, which is sometimes expressed as 51% level of proof.
Civil jury instructions, those instructions given to jurors by
the judge prior to their deliberations on a case, often describe
this as the "scales of justice tipping ever so slightly in
the direction of one party versus another," meaning that
the jury must find for the party who is supported by the weight
of the evidence, even if this is only slightly so. This difference
in burden of proof many times results in a situation where a defendant
is acquitted (found not guilty) on the criminal side, yet that
a perpetrator has a judgment rendered against him or her in civil
court.

Statute of Limitations

It is very important to keep in mind that although the victim
may have a valid case to bring against a perpetrator, these must
be brought within strict time limits set down by law. Although
each state is very different in which time limitations are allowed,
it is important to keep in mind that these strict limitations
do exist in most instances. Once a statute of limitations has
run, it is virtually impossible -- unless there are exceptions
recognized under the law -- to bring the lawsuit that otherwise
might have been brought within the statutory time limit.

Most statutes of limitations are expressed in absolute years.
For example, it is typical for personal injury actions to have
two or three year statutes of limitations.

Statutes of limitations typically begin to run from the point
in time when the act occurs.

Certain events can delay or extend a statute of limitations,
called "tolling" the statute.

The underlying purpose of statutes of limitations is to prevent
"stale" cases from being brought to court and thereby
denying a defendant, either criminal or civil, from being able
to defend himself/herself due to the lack of exculpatory evidence
or the fading memory of witnesses and similar reasons.

However, defendants are not allowed to deliberately conceal
their actions and thereby avoid prosecution of a case due to statute
of limitations. That is why most statutes of limitations schemes
allow for the tolling of the statute during periods where the
defendant, for example, has perpetrated a fraud against the plaintiff
or committed some other acts to conceal the crime.

Extending Time for Adult Survivors of Childhood
Abuse

One particular area where there has been much recent action extending
statutes of limitations is child sexual abuse. Many states now
extend statutes for bringing civil actions against abusers until
many years after the child has reached the age of majority. For
example, Connecticut enjoys one of the lengthier statutes which
was established at 17 years past the age of majority, or age 35
years. These actions are allowed regardless of the victim's reason
for not bringing the action earlier.

Extensions and Delayed Discovery Approaches

Although these issues are very complex, simply stated, there are
generally two types of cases where the bringing of the action
has been delayed by the victim:

One action is that the victim has lost or repressed his or
her memory of the abusive events. At a later point, these memories
may be recovered in therapy or spontaneously.

The other major type of delayed action is one where the victim
always had his or her memory of the events, but did not begin
the action for any number of other reasons.

Reasons for not bringing an action during a period when the memory
of the abuse is recalled might include: continued threats or intimidation
perpetrated by the offender; the victim did not understand the
connection between the abusive acts and the difficulties they
may be experiencing in their current lives. Regardless of the
reasons, these victims always had access to all or most of their
memories of the events. Therefore, the absolute extension of time
allows for an date certain within which victims may bring their
cases regardless of reasoning for the delay. Victims do not need
to prove any particular issue, such as a lost and recovered memory,
to begin a suit. However, at that certain age you are forever
barred from bringing your action in a state like this.

In the case of repressed and recovered memory, the second form
of statute of limitation approach is found. This is when a particular
period of time after the recovery of memory is allowed. For example,
a few states allow for victims bringing statutes at a certain
number of years, usually two or three, after they have recovered
their memory. This action is allowed within this time period regardless
of what point in life these memories are recovered. In a "delayed
discovery" jurisdiction, there is typically no absolute age
limitation as the tolling of the statute relates to the period
of memory loss or repression. Therefore, someone who is 70 years
old and recovers a memory of past abuse presumably would be allowed
the two or three year period within which to bring a suit if all
other requirements were met.

Lawsuits Involving Children and Women

More recently, due to the increased attention paid to particular
forms of victimization, lawsuits particularly tailored for special
victim populations have emerged. For the purposes of this discussion,
particular crimes against children and women will be briefly discussed.
It is important to note that, as Carrington and Rapp point out,
"victimization" itself is not a new tort, as such (See
generally five articles cited in References).

The civil cases being brought on behalf of victims and, in
particular, women victims, are typically based on a number of
well recognized civil legal causes of action.

Crimes against children and, particularly, sexual abuse, are
now regularly pursued within the civil justice system. This is
particularly true with statutory extensions in the limitations
on time that are allowed in these lawsuits.

Examples of how traditional tort concepts can be applied to special
victim population cases are evident with child victims. When sexual
abuse has occurred, a civil complaint may be prepared that alleges
numerous personal injuries. These may include the underlying assaults
and batteries, false imprisonments, wantonness or recklessness,
and other torts. Also, as emotional and psychological damages
are typically evident in child abuse cases, it is very common
for emotional distress claims to be brought.

Crucial aspects of a child's emotional distress claim involve
the presumption of the severity of the event that is typically
recognized by the court, and the fact that most courts will not
give much credence to typical defenses such as consent or assumption
of the risk. Moreover, due to the young age of the child and the
long life span anticipated for a young person, economic damages
can be very high.

In addition, issues surrounding the loss of enjoyment of life
-- such as the lack of the ability to trust, lack of the ability
to form meaningful relationships, lack of the enjoyment of childhood
and other similar somewhat more intangible claims -- can be added
to more easily economically determined claims such as the loss
of employability or the results of lack of academic success. As
in crimes against women that are described below, it is not that
the underlying legal action itself is different from other civil
lawsuits, but that the new territories now being explored by civil
courts in establishing damages, judgments and awards for child
victims are stretching the traditional views of courts to new
boundaries.

Crimes against women are also increasingly handled through the
civil courts. As the public recognition of domestic violence,
sexual assault, and sexual harassment become better understood
and recognized, victims are finding courtrooms more favorable
to a just outcome. Also, courts have become more familiar with
the psychological impact of crime, and look to psychiatric diagnoses
such as Post-traumatic Stress Disorder, and other recognized syndromes
such as rape trauma syndrome or battered women syndrome, to articulate
the injuries suffered by victims of these crimes.

Defenses

As briefly stated above, in every instance where a victim brings
a legal action claiming one of the injuries described here, the
defendant will be able to respond and often provides a defense
or an excuse for critical actions. Some common defenses include,
as discussed above, that the statute of limitations has
passed. This is what is referred to as a "complete defense."
It is often possible to stop victims from pursuing their cases
any further if the statute of limitations has run.

Another defense is that of provocation or that defendants
claim that their actions should be excused because they were somehow
provoked by the victim. Defendants may claim that they were involved
in self-defense or the defense of others by saying
their actions were justified in that they were only reacting to
a threat against themselves or someone else. Victims may also
be accused of having consented to the act or having enough
knowledge that they assumed the risks that were apparent
by consenting to the act. This basically means that the victim
is being accused of knowingly exposing themselves to the harm
that ultimately injured them. Although one cannot consent to everything,
e.g., you cannot consent to be murdered, other consent -- if proven
-- can help the defendant defeat the victim's case.

Finally, victims may be accused of contributing to their own injuries.
This defense in some jurisdictions is used to completely defeat
the victim's case (contributory negligence) and in other
jurisdictions it may be used to reduce the amount of money that
the victim may be able to recover (comparative negligence).

Proving Damages

In addition to demonstrating the liability of one or more defendants,
the victim must also prove his or her extent of harm or injury
to support an award of damages. Various theories of damages are
typically brought in victim litigation cases.

The most basic of these are physical injuries that require
medical intervention. It is often easy for medical bills
to be produced and to have these included in a judgment for damages.

In addition, when there is physical injury, often a physician
can indicate a specific permanent partial disability, or
narrow range of disability, such that a jury or court may estimate
more accurately what effect this will have on the person's life,
thereby allowing a particular damage award. Often issues such
as the potential for future medical treatment and the costs of
these treatments are figured into such damage awards.

In other victim cases, however, some less tangible damage
theories may be applied. Similar to the costs of past and future
medical treatment, the costs of past and future mental health
therapy may be estimated relatively easily. However, it is
often extremely difficult to state with any specificity what the
percentage of partial disability for emotional or psychological
damage should be. A competent and experienced expert must be engaged
to testify on these matters.

Critical Role of Victim Services

and Mental Health in Proving Damages

How does one determine issues such as the loss of childhood or
adolescence? How are these issues quantified in any way that will
make sense in the objective view of the court. The issue is how
one can determine whether a loss of academic, professional, or
personal potential has occurred. How can you prove that there
was a potential there when it was never realized? These are all
issues that place the victim service provider, and particularly
the allied mental health professionals, in a critical role within
the civil justice system. Often, courts look to mental health
service providers for treatment recommendations and evaluations
of disability to provide guidance in determining a value that
can be placed on the victim's injuries for the purposes of awarding
damages.

Judgments

At the conclusion of a civil lawsuit, a verdict or decision
is reached by the jury.

If that decision is a "verdict of the defendant",
then the victim has lost his or her case and is not allowed to
recover for injuries against this defendant.

If the result is a "verdict for the plaintiff ",
then the victim has won the lawsuit.

Juries are then requested to move to the next decision: The
awarding of a particular sum to compensate the victim for his
or her injuries. This is typically referred to as a "judgment."

Collection of Damages Awarded

It is important to note that in a typical victim case, reaching
the conclusion of trial and having a judgment rendered for the
victim/plaintiff is often only the beginning of the struggle in
recovering damages. First, although this is beyond the discussion
in this chapter, verdicts and judgments may be appealed. Briefly,
a defendant who has lost can seek to have a judgment overturned,
lowered, or set aside because the jury or the court failed to
follow some legal procedure, or the result of the lawsuit is inconsistent
with the prevailing law in a particular state. Therefore, the
decision of this trial-level court may be brought up before an
appellate court to render a decision as to the validity of the
underlying decision, and even if the verdict itself is not attacked,
the amount of the judgment may be appealed. Often, defendants
seek to lower the amounts of money awarded by juries who they
feel were overly zealous in awarding damages to the victim.

However, assuming the judgment withstands any appeals or other
challenges, then a collection of that judgment must commence.
In the case of insurance coverage, discussed below, insurance
companies will usually ultimately pay judgments in accordance
with their insurance policies.

Searching for Assets

If a defendant is sufficiently monied so as to be able to pay
a judgment and chooses to do so, the collection of that judgment
may be similarly swift. However, this is typically not the case
in victim cases. Potential assets include, but are not limited
to:

Real property (e.g., a home).

Other property (such as jewelry, motor vehicles, art work,
or other valuable holdings).

Other assets such as financial holdings, interests in real
estate, corporations, or partnerships.

Other income earned by or owed to the perpetrator.

Additionally, most states allow some method by which income earned
or expected by the perpetrator can be garnished. Many times a
victim will wait until the perpetrator has accumulated some assets
to attempt to execute the judgment. Defendants may win lotteries,
receive inheritances, or come into other windfalls which can open
them to judgment execution. However, attorneys representing victims
know that these are the exception -- and not the rule --
and typically the collections process can be a somewhat complex
endeavor. This is particularly true with defendants who may attempt
to fraudulently transfer their property or other interests to
individuals who help them shield their assets from collection
actions brought by victims. Nevertheless, a diligent collections
process often results in obtaining money to fulfill some, most,
or all of the judgment rendered by the court.

Insurance Issues in Brief

It is very useful for attorneys to look to the possibility of
insurance coverage in victims' cases. In some instances, the perpetrator
may be insured in some way that the result of the direct, first
party action against the perpetrator may yield some coverage.
It is important to note, however, that the likelihood of recovery
in first party lawsuits is significantly tempered by underlying
public policy regarding insurance. Essentially, insurance policies
do not cover intentional wrongdoing. This is primarily
based on long-standing public policy.

It is fundamental to our society's well-being that wrongdoing
not be encouraged by having the judgments of intentional wrongdoers
paid by insurance.

If insurance companies were available to pay for the deliberate
wrongful acts of perpetrators, then they might continue to perform
critical acts unabated knowing that someone else will be there
to pay for their actions.

Exclusions and Exceptions: Catching Coverage

Insurance policies, which can best be understood as contracts
between the insurance company and the insured individual, contain
exclusions of various sorts. One of the most basic is the exclusion
of intentional, criminal, willful, or expected wrongful acts and
damages discussed above.

Counterbalancing these exclusions are various exceptions that
are found in insurance contracts or are being carved out by creative
attorneys. The types of exceptions to the intentional acts exclusions
that are being developed by courts include those where the perpetrator
was unable to or otherwise did not form the intent to commit the
act.

For example, if someone of diminished mental capacity were
to commit an act, and it was determined that he or she was unable
to truly form the intent to commit these wrongs, then coverage
might be allowed.

Negligence is Insurable

Third party suits brought against negligent defendants, who are
not the actual perpetrators, allow for a much greater possibility
for coverage by insurance policies. In the case of negligence,
no intentional acts are committed by these third party defendants.
As stated above, the hotel chain did not actually commit the assault;
however, its knowledge of the high potential of assaults due to
past criminal activities, and its failure to increase security
to prevent these acts while assuring guests that protection was
available to them, results in the determination of negligence.

Three types of insurance are most commonly involved in crime victim
cases. These are:

Automobile insurance.

Commercial insurance.

Homeowner's insurance policies.

Automobile Insurance

Automobile insurance policies that cover acts that "arise
out of the use, operation, or maintenance of the motor vehicle."
An obvious example would be a case where a drunk driver crashes
into the victim, causing death or serious injury. These acts are
considered within the scope of coverage of an automobile insurance
policy.

Some difficult determinations involving automobile policies are
implicated when the wrongful act is one that is not normally considered
to be out of a typical use, operation, or maintenance of a car.
For example, if a drive-by shooting were to occur, should the
automobile insurance policy be implicated? Courts differ on their
interpretation of this, most finding that the motor vehicle is
not actually an instrument of the drive-by shooting, and that
the automobile policy will not be implicated.

Premises and General Liability Policies

Commercial insurance policies, similar to homeowner's (or renter's)
insurance polices, provide liability coverage for events that
occur on particular premises. These insurance polices tend to
be broad and cover a number of different types of injuries or
accidents. Moreover, coverage may not be limited to events that
occur only at these locations. For example, commercial policies
may provide coverage for acts that are committed by employees
not on the business premises. Similarly, acts that are committed
by the homeowner under certain circumstances may be covered, even
when the homeowner is not actually on his or her property.

Retribution Against Victims

A disturbing trend in victim's civil litigation cases involves
legal retributions brought against the victim by the perpetrator.

These may be brought in the form of separate lawsuits or counterclaims
within the victim's own lawsuit.

Typical counterclaims against the victim include:

Defamation, liable and slander.

Invasion of the defendant's privacy.

Conspiracy or fraud against the defendant.

Extortion claims against the defendant.

Claim that the victim's action has caused emotional distress
to the defendant.

One additional avenue always available to defendants is to claim
that the lawsuit was merely brought for vexatious purposes. A
vexatious lawsuit is one that the defendant alleges was otherwise
groundless and brought only to needlessly harm the defendant in
an unwarranted or improper way. This is an area that deserves
considerable attention from victims and their advocates. Also,
a trend is developing in which those who provide mental health
services and evaluations to victims are often the subject of lawsuits
brought against them. This is most evident in later discovered
repressed memory cases in adult survivors of child abuse litigation,
where mental health professionals are sometimes sued for allegedly
implanting memories in victims' minds.

Other Cautions for Victims

Although victim litigation often provides excellent opportunities
for victims to find remedies to their complaints against perpetrators,
it is not often an easy road. Civil litigation is a complex and
often difficult process:

Victims can often be victimized once again in the civil process,
despite the fact that they possess more control.

Victim cases can often be very expensive to pursue.

Victims must be aware of the fact that they are ultimately responsible
for the costs of litigation under most legal ethics rules and,
if their cases are lost, they can be held responsible for these
bills. As noted above, the discovery period is often the most
difficult for victims. Victims must, once again, reveal very personal
information about themselves and allow themselves to be probed
and cross examined by the perpetrator's attorney. This can be
a very disturbing proposition for victims who have, in many cases,
recently or simultaneously endured the indignities of the criminal
justice system. All this is not to say that victims should be
overly cautious of litigation. However, victims and advocates
must have a realistic view of the civil justice system provided
to them prior to commencing such actions.

Conclusion

The civil justice system offers many potential benefits to victims
of crime. Victims are in greater control of their lawsuits, as
opposed to a criminal trial; this can help provide them with a
greater sense of restoration of the control that they may have
lost during the criminal victimization. Moreover, the victim often
has that sense of empowerment that comes from hauling the perpetrator
into court, with the victim having his or her "day in court".

Glossary

Aiding and Abetting. Similar to Civil Conspiracy, is when
someone, not the actual perpetrator, so significantly contributes
to the criminal operation as to be considered liable for their
actions.

Abscond. To go in a secretive manner out of the jurisdiction
of the courts, or to lie concealed, in order to avoid their process.

Answer. Formal written responses to the defendants / perpetrators
file in response to plaintiff's complaints. These pleading may
deny some or all of the allegations; they may raise defenses such
as self defense or assumption of risk, or they may allege that
even if all of the plaintiff's allegations are true, there is
no liability. These pleadings are usually accompanied by legal
memoranda and briefs. The names of the pleading vary from jurisdiction.
"Demurrers", "motions for summary judgment",
motions to dismiss" and "answers" are all descriptions
of responsive pleading.

Assault. A cause of action for intentionally putting the
victim in fear of a battery, coupled with the apparent ability
to commit the battery.

Assumption of Risk. A legal doctrine that may relieve perpetrators
of liability for injuries to victims if the victim voluntarily
entered into a situation knowing that there was a risk of foreseeable
injury (see also: Defenses; Rescue Doctrine).

Automobile Insurance. Insurance policies that cover injuries
"arising out of the use, operation, or maintenance"
of the vehicle.

Battery. The intentional, offensive, unpermitted touching
of the victim by the perpetrator.

Burden of Proof. The threshold of evidence that one party
must present in order to prevail in his or her case. In criminal
cases, the burden of proof is very high: "beyond a reasonable
doubt", or generally 99% of the evidence. In civil cases,
however, the burden of proof on the victim / plaintiff is "a
mere preponderance", or more than 50% of the evidence.

Causes of Action. The legal basis for a civil lawsuit.

Civil Actions. Lawsuits filed by victims to recover from
injuries sustained and damages incurred as a result of the perpetrator's
crime.

Civil Conspiracy. See Aiding and Abetting.

Collateral Estoppel. A legal doctrine which provides that,
in some cases, the criminal conviction of perpetrators will be
considered proof of those perpetrator's legal liability in civil
actions brought by the perpetrator's victims.

Collectability. A general term meaning the extend to which
defendants / perpetrators have the financial means to pay judgments
from assets on hand, assets reasonably to be expected in the future,
or financial assistance from such sources as insurance coverage.

Comparative Negligence. The more prevalent approach to
reducing amounts paid to plaintiffs / victims allowing partially
negligent plaintiffs / victims to recover damages from defendants
/ perpetrators, however, reducing the amounts of the award by
the applicable percentage of the plaintiff's / victim's own negligence.
(See also: Contributory Negligence).

Complaints. The formal written pleading filed in Civil
Courts alleging that the defendant(s) injured the plaintiff(s),
and that they should be liable for damages caused.

Compensation. Monetary reparations made to crime victims
by a state or a governmental entity to recover "out­of­pocket"
expenses incurred as a result of the crime.

Compensatory Damages. Damages paid to compensate victims
for losses caused by the torts of the perpetrator. Such losses
include: out­of­pocket expenses, loss of income, expenses
such as medical bills, therapy, funeral costs, etc.; loss of present
and future earning capacity; conscious pain and suffering; financial
support; and, "consortium", the loss of the affection
and society of lived ones.

Contributory Negligence. A legal doctrine, now modified
in most jurisdictions, that any negligence on the part of the
plaintiff / victim will bar civil lawsuits against defendant /
perpetrators. (See also: Defenses; Comparative Negligence).

Criminal Action. Cases in which the state prosecutes perpetrators
of criminal acts, committed in violation of the state's laws.

Damages. Amounts of money awarded to winning parties in
civil suits expressed in a judgment.

Defendants. Parties against whom civil actions are brought.

Defenses. Legal doctrines that relieve defendant / perpetrator
of liability for having committed a tort.

Delayed Discovery Rule. A legal doctrine that suspends
the running of statutes of limitations during periods of time
in which the victims did not discover, or by the exercise of reasonable
diligence, could not have discovered, the injuries that would
lead to their causes of action against the defendant / perpetrator.

Depositions. Pretrial proceedings in which attorneys for
parties in a civil case have the opportunity to examine, under
oath, the opposing parties and potential witnesses in the case.
Depositions are sworn and reduced to writing. The transcripts
may be admissible in evidence at trials if the witnesses are no
longer available, or for the purposes of impeachment.

Emotional Distress. Emotional distress, or psychological
injuries, can be caused by intentional, reckless, or negligent
acts. Intentional infliction of emotional distress occurs when
the perpetrator, by extreme and outrageous conduct, intentionally
or recklessly causes someone emotional distress. Reckless infliction
of emotional distress arises when the perpetrator causes emotional
distress willfully and with a callous disregard of the consequences.
Negligent infliction of emotional distress arises when the perpetrator
acts negligently, causing emotional distress.

First Party Action. Lawsuits brought by victims directly
against their perpetrators.

General Liability Insurance. Insurance policies covering
whatever losses are enumerated in the policy.

Homeowner's Insurance. Broad based insurance policy which
contracts to protect the insured from enumerated caused of accidental
injuries to others. The accidents usually are not only confined
to acts which happen on the insured's "home" premises,
but also covers accidents that happen elsewhere. Renters of premises
can obtain Renter's Insurance.

Insured. He or she who has contracted to receive insurance
coverage from the Insurer whose actions are otherwise covered
by an insurance policy.

Insurer. The business entity which has contracted to provide
insurance coverage to the insured.

Judgments. The formal recitations of the outcomes of civil
cases. They are almost always reduced to writing, and recorded
as a part of the file.

Negligence. A legal doctrine providing that one may be
liable to another if he or she: 1) owes a legal duty to the other;
2) materially breaches that duty; 3) the breach is the proximate
cause of the other's injury; and 4) the other person suffers damages.

Negligent Entrustment. A tort in which one or more persons
give, lend, or allow someone to use, or should have anticipated
that that person would use a dangerous instrumentality to injure
another.

Parental Liability. A legal doctrine that holds parents
civilly liable for the torts and crimes of their children.

Perpetrators. Persons who have criminally injured victims.

Plaintiff. Party bringing civil actions. In the case of
victim civil remedies, the victim is the plaintiff.

Professional Liability Insurance. Insurance coverage issued
to "professional" persons: doctors, dentists, lawyers,
architects, etc., to cover any losses caused by "malpractice"
in the course of their professional services.

Provocation. A legal doctrine that may excuse defendant
/ perpetrator from the consequences of his / her crime / tort
if the plaintiff / victim instigated a confrontation, or otherwise
caused or provoked the defendant's actions. (See also: Defenses).

Proximate Cause. The "cause in fact" of injury
to victims; a "cause" without which the victim's injuries
would not have occurred.

Punitive Damages. Damages awarded to victims against perpetrators,
over and above compensatory damages, in order to "punish"
or "make an example of perpetrators".

Relevance. A rule of evidence. For purposes of this Manual,
it simply means any evidence that might tend to prove the truth
of the matter.

Renters Insurance. See Homeowner's Insurance.

Rescue Doctrine. A legal doctrine which allows one to recover
for injuries suffered in coming to the rescue or assistance of
others in peril. It is used as a counter to the defense of Assumption
of Risk. (See also: Defenses; Assumption of Risk).

Restitution. Court action that requires perpetrators to
make financial payments to their victims, usually as a condition
of probation or leniency in sentencing.

Self Defense. The legal doctrine which relieved defendants
/ perpetrators of liability for torts if they acted in the reasonable
belief that they had to use force to defend themselves, or others
(loved ones, etc.), from death or great bodily harm.

Settlements. Agreements among the parties to lawsuits to
end the suits without trial; usually the plaintiff agrees to drop
the lawsuit for a fixed sum of monetary damages paid by the defendants.

Statute of Limitations. Periods of time, set by law after
which civil actions cannot be brought. (See also: Defenses).

Third Party Actions. Lawsuits brought against persons whose
negligence or gross negligence has facilitated the commission
of a tort by a defendant.

Tolling of Statutes of Limitations. The running of statutes
of limitations is suspended. (See also: Statutes of Limitations).

Truer of Fact. In civil cases, evidence is heard as to
the facts, and the facts must be applied in the context of the
applicable law. The entity that decides which facts are true is
called the "Trier of Fact". This usually is the jury
but, in non­jury cases, the truer of fact will be the judge
sitting without a jury." Trier of Law, always the judge,
who applies the relevant law to the facts as determined by the
trier of fact.

Uninsured or Underinsured Motorists. State law usually
makes it compulsory that drivers have enough insurance to cover
damages if they, or others defined in the policies, injured by
motorists who have no insurance, or not enough insurance, to cover
injuries that they have caused.

Victims. Persons who have been injured by the criminal
acts of perpetrators.

Wrongful Death. The civil action for the killing of one
human by another, without justification or excuse.

Self Examination Chapter 8

Civil Lawsuits for Victims of Crime

1) Identify and describe three major differences
between civil litigation and criminal prosecution from the victim's
perspective.

2) Name and define three major causes of actions
used by victims.

3) What are civil statutes of limitations? Discuss
statute of limitations innovations applied to adult survivor of
childhood abuse cases.

4) Discuss the pros and cons of victim litigation.

5) What are the two general approaches for victims
to collect judgments?

The following questions address the differences between criminal
and civil cases, as well as critical aspects of a civil case.
This exercise is designed to help you draw from the information
provided in the preceding lectures on The Dynamics of the Criminal
Justice System and An Overview of the Civil Justice System.
After reading the case scenario, please complete the following
table. A class discussion will follow. This exercise is designed
to last 15 to 20 minutes.

Hypothetical Case

Two boys, aged 16 and 19 years old, live with their mother.
Their father is deceased and their mother is divorced from their step-father, who lived with them for 3 years.
The step-father left home for the last time when the boys were 9 and 12 years old. While he was in the home,
his father (the boys' step-grandfather) visited frequently and took the boys on numerous outings to baseball
games, the circus, and hiking. The boys have both had trouble in school and with problem behavior. In the
course of family counseling, they revealed that the step-grandfather had regularly engaged in sex acts with
them and had photographed them performing oral sex acts. The acts took place at a number of places, including
his home, and camper. The step-grandfather is retired after building a successful manufacturing business. He lives
in the state, in a different town. The mother decides to take action.